S v Muremba (CRB 17 of 2020; HMA 13 of 2020) [2020] ZWMSVHC 13 (20 March 2020)

1 HMA 13-20 CRB 17-20 THE STATE versus CLEPHAS MUREMBA HIGH COURT OF ZIMBABWE MAWADZE J MASVINGO, 24, 25 February and 20 March 2020 Criminal Trial Assessors 1. Mr Nish 2. Mr Mutomba Ms M. Mutumhe, for the state D. Hwacha, for the accused MAWADZE J: The issue in this matter which fails for determination is how the now deceased was fatally injured on 18 July 2019. The accused is facing the charge of murder as defined on section 47 (i) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] [hereinafter the Criminal Code Chapter 9:23]. The specific charge is that on 18 July at No. 37 Victoria Ranch, Masvingo the accused unlawfully and intentionally caused the death of Elizabeth Dzingi by stabbing her with an unknown sharp object on the neck. The background facts to this case are as follows; HMA 13-20 CRB 17-20 The 30 year old accused and 29 year old now deceased were lovers cohabiting at No. 37 Victoria Ranch, Masvingo owned by Patience Egnesi Njiri and they rented a room. The now deceased was the tenant. The accused and the now deceased had fallen in love in April 2018. The now deceased had been a tenant at this house since 2016. The now deceased had in July 2018 invited the accused to come and stay with her at her lodgings as a live in boyfriend. The accused had moved in only with his personal clothing as all utensils and bedding belonged to the now deceased. All what the accused possessed were his personal clothes certificates and a satchel. They shared expenses relating to rentals and food. At the maternal time the now deceased was employed as a Pharmacy Assistant in Chiredzi and she would come to Masvingo during her off days and weekends to join the accused at No. 37 Victoria Ranch, Masvingo. The accused was employed as a brick moulder in Masvingo. No child was born out their relationship although each one of them had a child of their own. As regards the events leading to the now deceased’s death, the now deceased had come from Chiredzi to Masvingo on 17 July 2019 and spent the night at their lodgings with the accused. The following morning on the fateful day 18 July 2019 the now deceased had in the morning paid their rentals. Thereafter her 25 year old young sister Rudorwashe had visited her and they had proceeded to town leaving the accused. In town the now deceased and her young sister had drank beer and later on in the evening proceeded to Dunira business centre in Victoria Ranch where they joined accused and continued to drink beer. Accused was the first to leave the bar for their lodgings and was shortly followed by the now deceased. At their lodgings the misunderstanding continued. The cause of this misunderstanding was that the now deceased was alleging that accused was being unfaithful bringing other women at their lodgings in the now deceased absence. Accused disputed these allegations of infidelity. As the quarrel continued whilst inside their room the accused decided to take his satchel and clothes and left proceeding to his rural home in Gokomere that night. The now deceased followed him and caught him at the gate of the house. What thereafter transpired leading to the now deceased’s death is what in dispute. The state alleges the accused whilst about 2 meters from the gate stabbed the now deceased with a sharp object on the shoulder, around the neck, pulled out the sharp object and fled from the scene after which he disposed of the sharp object he later disclosed to be a knife. HMA 13-20 CRB 17-20 The now deceased shouted calling out the landlady’s name that she was dying saying “mai Dzimiri ndofa” [I am dying]. The landlady found the now deceased’s head trapped by the gate bars and she had passed on. A report was made to the police. The accused fled from the scene leaving his satchel containing his clothes and certificates. The accused proceeded to Harare where he later sold the now deceased’s mobile phone and raised bus fare to buy poison after which he proceeded to his rural home in Gokomere. The accused tried to commit suicide by taking poison and he was hospitalised and arrested. The accused’s version of events is that as he was out the gate with his satchel leaving the now deceased called him to stop. He obliged and the now deceased was holding his trousers which she used to hit him. The accused grabbed the trousers and threw it away. He said suddenly he realised the now deceased had pulled out a kitchen knife and was about to stab him. Accused did not see where exactly the now deceased pulled the knife from. In self-defence he held the now deceased’s hand holding the knife and twisted it with his back on the durawall. Accused wanted to escape. He pushed the now deceased away unaware that the blade of the knife was now pointing at the now deceased. The now deceased was stabbed in the process and she called out to him that she had been injured. She asked him to pull out the knife which he did. The accused realised the now deceased had been badly injured on her left shoulder. He panicked and fled from the scene leaving his satchel. He threw the knife away at the scene. The knife was not recovered. The accused boarded a bus to Harare to go and advise his elder brother what had happened. The elder brother had left for South Africa. The accused called his friend in Masvingo who told him the now deceased had passed on. He became confused and decided to take his life. When he fled he still had the now deceased’s mobile handset. His own mobile handset was defective. He sold the now deceased’s mobile handset to raise money to buy some poison and raise bus fare to return home in Gokomere. The accused proceeded to his rural home at Gokomere and on arrival at the bus stop he alighted and took poison. He fell unconscious but arrived only to realised he had been arrested. The cause of the now deceased death is not in issue. As per the post mortem report Exhibit 1, the doctor observed the following; HMA 13-20 CRB 17-20 “1. stab wound in left supraclavicular fossa ± 2cm wide, deep cutting through great neck veins and reaching lung apex. 2. large amount of blood on the body." The cause of death is stated as haemorrhagic shock arising from the stab wound. The accused’s confirmed warned and cautioned statement Exhibit 2 is in sync with his defence outline and evidence in court. The accused has been consistent therefore in his explanation. The evidence led by the state is largely common cause. The evidence of the now deceased’s young sister Rudorwashe Dzingi, Galant Sibanda who is accused’s friend and Dr Godfrey Zimbwa who carried out the post mortem examination and complied Exhibit 1 was admitted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. It shall only be summarised for the completeness of the record. The state led viva voce evidence from the now deceased’s landlady Patience Egnesi Njiri, police details constable Sidney Sibanda who also attended the scene and the investigating officer Assistant Inspector Gifton Mushovu. The accused gave evidence and did not call any witnesses. We shall summarise the evidence admitted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07] as follows; Rudorwashe Dzingi (Dzingi) She is the now deceased’s young sister. On 18 July 2019 she visited the now deceased at her lodgings. The now deceased told her of her problems with the accused and that they had not had sexual intercourse as she no longer trusted the accused. She proceeded to town with the now deceased where they spent the day drinking beer. Later they proceeded to Dunira business centre in Victoria Ranch where they joined accused and continued drinking beer only to be advised later of the now deceased’s death. Dzingi‘s evidence shows that the now deceased spent the fateful day drinking beer hence at the time of her death she should have been drunk. Gaviant Sibanda (Sibanda) The 26 year old Sibanda is accused friend. On 18 July 2019 he was with accused drinking beer at Dunira busin